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Imbraguglio v. Great Atlantic & Pacific Tea Company3/10/2000
1. Moreover, 'there are certain risks which anyone of adult age must be taken to appreciate: the danger of slipping on ice, of falling through unguarded openings, of lifting heavy objects ... and doubtless many others.' Prosser and Keeton ยง 68, at 488." Martin, 348 Md. at 91-92, 702 A.2d at 734. Respondents emphasize "falling through unguarded openings," when arguing that Imbraguglio knew and appreciated the risk of his injury. The question here, however, is whether Imbraguglio assumed the risk as a matter of law.
Petitioner focuses her attack on the summary judgment at the third element of assumption of risk, voluntariness. She points to the evidence that the "cages" were not OSHA compliant, a fact that is not further explained in the record. From this Petitioner concludes that there was no choice because either type of platform--an unguarded pallet or a modified pallet referred to by Respondents as a cage--was dangerous. That conclusion by no means follows from the present state of the record. Further, Imbraguglio's decision to use a pallet without a guardrail was a voluntary act. The fact that it was more convenient for him to use the unguarded pallet does not make his action non-voluntary. See Brady v. Parsons Co., 327 Md. 275, 289-90, 294, 609 A.2d 297, 304, 306 (1992) (affirming jury verdict that employee assumed risk, and noting that he may have decided not to perform the task in a safer manner "because his method was somewhat faster and 'easier,'" and that proof of an OSHA violation does not preclude consideration of this defense); Schroyer, 323 Md. at 288-89, 592 A.2d at 1125-26 (holding that hotel guest assumed the risk as a matter of law when she chose to park on and walk across ice-covered portion of parking lot "for her own purposes, i.e., her convenience in unloading her belongings").
Our conclusion as to the voluntariness of Imbraguglio's decision, however, is not the end of the matter. It simply illuminates the issue. Here, a trier of fact could infer that the immediate cause of Imbraguglio's fall was the shift of a carton in the bin from which Imbraguglio was retrieving part of an order that he had been filling which had fallen off the storage pallet. Thus, the issue is whether Imbraguglio assumed the risk of injury or death from a fall caused by a shift in bin content, while he was standing on an unguarded pallet between six and seven feet from the floor, when that fall might or might not have been prevented by a pallet with a single course railing.
Some of our cases have involved falls from heights. Most recently, Brady, supra, dealt with a worker who stepped from an unguarded scaffold onto a wall from which he fell forty feet to his death. We held that there was sufficient evidence for a jury to find assumption of risk. There was a difference of thirty-five feet in the drop on one side of the wall as compared with the other. Focusing on the greater drop, we said:
"Although a fall from that wall to the east ... would have involved a distance of only about five feet, a fall to the west meant a drop of approximately 40 feet to the ground below. The risk was immediately apparent, and the evidence was sufficient to support a finding that [the decedent] knew of the existence of the risk and appreciated its unreasonable character." 327 Md. at 288, 609 A.2d at 303.
It was unnecessary in Brady to determine whether the decedent had assumed the risk as a matter of law, inasmuch as the jury returned a defendant's verdict.
In Kasten Construction Co. v. Evans, 260 Md. 536, 273 A.2d 90 (1971), a worker was injured when the telephone pole that he had climbed toppled to the ground. The pole was thirty feet long but remained only two feet
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